Time to rein in the filibuster

Most Americans, if they can picture a filibuster at all, probably imagine a lone senator (played by Jimmy Stewart) talking nonstop for hours to stall a vote as the public slowly takes notice.

This heroic version of the filibuster, popularized by Frank Capra, has not existed since the 1970s.  Nowadays, the filibuster as a parliamentary maneuver only involves intent. Senators considering filibustering somehow signal their plans and the bill they oppose is generally pulled from the legislative calendar. That leaves a sort of “virtual” filibuster conducted offstage while onstage the bill’s supporters try to round up the 60 votes needed to invoke “cloture,” the countermeasure that allows it to be considered.

The logic behind dealing with filibusters by bypassing them in this way is simple. Until the 1970s filibusters were rare, but potentially disruptive, events that only succeeded in killing a bill if the Senate needed to proceed on other business. The thought was that keeping the Senate operating would allow other bills to pass and reduce the leverage of filibustering senators.

Several decades later it is clear that this approach has succeeded at eliminating the disruption of traditional filibusters, while dramatically lowering the cost of the virtual ones. Obstructing senators no longer have to worry about thwarting their own priorities, frustrating their colleagues, drawing unwanted public attention, or losing their voices. Filibusters are now cheap and easy.

This has had three broad consequences. First and foremost, filibusters are now plentiful.  Today almost every piece of major legislation and many minor ones are subject to some form of filibuster. Nine months into the current Congress there have already been nearly as many cloture resolutions filed as in the first 50 years of the existence of the cloture procedure.

As cloture has increased in importance so have political parties. Prior to the 1970s, senators who tried to talk a bill to death needed gall and stamina.

Today they need 40 other senators to prevent cloture. Parties are the easiest place to find such large numbers of allies. Parties now organize filibusters, and enforce unity to keep them going. Each party has decried filibusters while in the majority, and promptly gone on to set new records for using them when in the minority.

Finally, filibusters have become so routine as to be almost undetectable. President Barack Obama’s stimulus bill took 60 votes to pass the Senate, but was not officially a filibuster. Why? Because Senate leaders, recognizing the certainty of one, simply struck a deal that the bill required 60 votes for passage. So much for transparency.

All of these developments are unprecedented in Senate history, and all are undeniably corrosive to its ability to fulfill its constitutional role. The Senate is often billed as “the world’s greatest deliberative body.” Today’s filibusters have come to be defined by the very absence of debate, and they prevent meaningful deliberation by reducing the legislative process to a series of backroom deals to achieve cloture.

These problems with the filibuster transcend any specific bill or political party or president. We favor the right of committed minorities to try to use extraordinary means to stop legislation they find intolerable, not the right of casual minorities to use those same means routinely to stymie the majority.

The challenge is to make filibusters extraordinary again, to raise their costs so that filibustering signifies more than mere opposition to a bill. One simple idea would be to allow  three-fifths of senators present and voting, as opposed to three-fifths of the full membership, to invoke cloture. Filibustering senators would have to be ready to fend off cloture at any time, forcing them to alter their schedules and stay close to the floor.

Alternatively, the majority leader could return to the previous practice of keeping filibustered bills on the legislative calendar, forcing its opponents to talk a bill to death in full view of the public. Leaders have always had that right, but they have been reluctant to inconvenience other senators, and hindered by rules that put more pressure on the senators trying to break a filibuster than on those trying to keep itgoing. Those rules, too, can be changed.

Its defenders will surely argue that the filibuster is sacrosanct, a traditional check on majority rule. But filibusters are nowhere in the Constitution; they were not even permitted in the first Congresses. There is no tradition preventing today’s senators, if they believe that filibusters are being abused, from doing as their predecessors did and changing the rules.

Ultimately, the best reason to tame the filibuster is to return some transparency to the legislative process and make legislators accountable for their actions. That, and not the unfettered right to obstruct, is the real tradition of American politics.

The authors are professors of political science at Binghamton University in New York.